Employee Rights

Employees and workers enjoy a large number of employee rights given to them by Parliament. These are known as statutory rights. In addition to statutory rights employees and workers may have more generous contractual rights which their employers have chosen to give to them. An employer may never give less than the statutory entitlement. If it does the employee will be able to submit a claim to an employment tribunal for compensation. The amount of compensation can vary from as little as two weeks’ pay to an unlimited amount, depending upon the right that has been breached.

It is important to note that employees enjoy more rights than workers. The category of “worker” was introduced to provide some protection to those individuals who are not self-employed but who do not reach the high threshold of being an employee. Worker status is often, but not always, applied to people on zero hours’ contracts. Employment status can be notoriously difficult to determine so do contact us for specialist advice if your situation is unclear or open to dispute.   

A third category is the ‘employee shareholder’ which was introduced in September 2013. They enjoy all the same benefits as ordinary employees except that they have chosen to give up their right to claim unfair dismissal and redundancy pay in exchange for shares in their employer’s company. (Employee shareholders can claim unfair dismissal if the dismissal is connected with discrimination, health and safety or is automatically unfair.)

The rights of agency workers are not included in this briefing as they are protected by separate legislation under the Agency Workers Regulations 2010. Please contact us if you would like further information. 

The list below is a non-exhaustive list of some of the main statutory rights.

The right to a written statement of terms and conditions of employment

Employees must be given a written statement setting out the main terms and conditions of employment within two months of commencing work. The details which must be included in this statement are set out in Section 1 of the Employment Acts 1996. It includes rates of pay, place of work, normal pay date, holiday entitlement, and working hours.

This right falls within employee rights and does not apply to workers.

The right to Statutory Sick Pay

Under the Statutory Sick Pay (General) Regulations 1982 and the Social Security Contributions and Benefits Act 1992 employees who are too ill to work are entitled to up to 28 weeks of Statutory Sick Pay providing their average weekly wage is enough for them to pay Class 1 National Insurance Contributions. The rate of statutory sick pay changes annually, usually every April. The rate from April 2016 is £88.45 per week.  

This right may apply to workers if they pay Class 1 National Insurance contributions.  

The right to protection against unlawful deduction from wages

This right is provided under Section 13 of the Employment Rights Act 1996. Unlawful deductions can include an employer’s failure to pay the employee for hours worked, for holiday pay or for paying the employee at the wrong rate of pay or below the national minimum wage. Some deductions from wages are lawful including (in most cases) where the employer has overpaid the employee in error or it has been agreed in the Employment Contract that deductions can be made, for example, the repayment of training courses.  

This right does apply to workers. 

The right to itemised payslips

Under Section 8 of the Employment Rights Act 1996 all employees must be given an itemised payslip for every pay date which shows details of gross pay, all deductions made, such as those for tax, national insurance and pension contributions, and net pay. These payslips can be paper or electronic.  

This right does not apply to workers.

The right to the national minimum wage or national living wage

Under Section 1 of the National Minimum Wage Act 1998 employees and workers (with a few exceptions) must be paid the hourly national minimum wage or national living wage. The minimum wage rates change every year and are  set in consultation with the Low Pay Commission. The national minimum wage changes every October and the national living wage  changes  in April. 

Rates from October 2016:

25 and over - £7.50 per hour

21-24 - £7.05 per hour 

18-20 - £5.60 per hour 

Under 18 - £4.05 per hour 

Apprenticeship rate - £3.50. This rate applies to apprentices under 19 years of age or those aged 19 and over but in the first year of their apprenticeship. 

Workers who live in their employer’s family home and who are not charged for food and accommodation and are treated as part of the family do not qualify for the national minimum wage. 

In some cases it can be extremely complex to calculate whether an employee is being paid the hourly national minimum wage, especially if they are working as live-in carers, if they work on call or if they do piecework. Employees who believe they or their colleagues are not being paid the national minimum wage can report their employer to Her Majesty’s Revenue & Customs (HMRC) who will investigate the matter. Employers who fail to pay the national minimum wage can be “named and shamed” by the Government’s Department for Business, Energy and Industrial Strategy (BEIS) and face very large fines. 

The "national minimum wage" and the "national living wage" are different from the “living wage” which is currently being promoted by the Living Wage Foundation. It has been calculated that an individual needs to earn £9.15 an hour if they live in London or £7.85 per hour in the rest of the UK in order to cover the basic cost of living. The living wage now has some widespread support from some politicians, church leaders, charities, and (mainly larger) employers although it is not compulsory to pay it and many employers lawfully choose not to do so. 

This right does apply to workers.

The right to paid annual leave

Under Regulation 13 of the Working Time Regulations 1998 (WTR) full-time workers are entitled to 28 days’ paid annual leave per annum. Part-time workers are entitled to a pro rata amount. Employers have the right to determine when the employee takes their holiday, for example they may close the business down over Christmas and make employees take some of their annual leave then. In the first year of employment employers also have the right to insist that employees only take their annual leave once they have accrued it.  

There is no right under the WTR to carry over unused annual leave, unless the employee is prevented from taking it due to maternity leave or sickness. Some employers provide a contractual right to carry over a few days (usually up to five) into the next year. Generally speaking though if employees don’t take their annual leave the “use it or lose it” principle applies and they have no right to be paid for untaken leave. The only exception is when they terminate their employment and they are then entitled to be paid for any accrued but untaken annual leave with their final pay.

Until recently employers based annual leave on basic salary. Recent judgments from the European Court of Justice and the Employment Appeal Tribunal in the UK have held that holiday pay should include all “normal pay” which can include compulsory but non-guaranteed overtime. For more information click here

This right does apply to workers.

The right to rest breaks and the maximum working week

The main purpose of the Working Time Regulations 1998 is to protect the health and safety of employees and workers by limiting the hours they may work. Some of the basic rights are set out below but it is important to note that there are very many “exceptions” and “special cases” with separate rules applying to workers in road, rail, sea and air transport, the police and emergency services, to night workers, to young workers and to factory workers or those in hazardous industries. Please contact us if you would like advice on your specific circumstances.

  • A rest break of 20 minutes when working more than six hours per day.
  • 24 hours uninterrupted rest per work (or 48 hours of uninterrupted rest per fortnight).
  • 11 hours uninterrupted rest per day.
  • Employers must ensure that all night workers have the opportunity of taking a free health assessment when starting night work and at regular intervals thereafter.
  • Employers must keep and maintain records showing whether the limits on average working time, night work and the provision of health and safety assessments are being complied with in the case of each worker.
  • Employers must take all reasonable steps to ensure that each worker’s average working time (including overtime) does not exceed 48 hours per week. 

Employees do have the option to opt out of the 48 hour maximum working week if they wish.  There is no sanction on the employer if their employee chooses to work through their rest breaks or lunch breaks but the employer does have a general duty to look after the health and safety of their employees. Employers should intervene if the employee is putting himself or others at risk by failing to take adequate breaks.

These rights do apply to workers.

The right to protection on the transfer of undertakings

The Transfer of Undertakings (Protection of Employment) Regulations 2006 provide protection for employees when their employer sells or outsources their business to a new employer.

Although TUPE protection only applies to employees the TUPE Regulations define an employee in slightly wider terms than is normally used for employment protection purposes. Therefore it is likely that many workers would fall within the extended definition and enjoy the benefit of TUPE protection.  

The right to be accompanied at a disciplinary or grievance hearing

Under Section 10 of the Employment Relations Act 1999 employees have the right to be accompanied by a workplace companion or a trade union representative of their choice. Until recently some employers would try to restrict the employee’s choice of companion, for example on the grounds that there could be a conflict of interest. Recent case law has held that it is the employee’s absolute right to choose any workplace companion they like and employers must not interfere with this right.  

Employees have no statutory right to be accompanied by anybody other than a workplace companion or a trade union representative although some employers will make exceptions, especially if the employee is disabled, and allow them to be accompanied by a friend or family member. Employees have no statutory right to be accompanied at investigation hearings. Employees have no right to be accompanied by a lawyer or their legal representative at disciplinary hearings although in one exceptional case the courts held that doctors in the NHS may be accompanied by their lawyer on the basis that if they were to be dismissed from the NHS their life long career in the UK could be ended. 

This right does apply to workers.

The Right to a Pension Contribution from Employer under the Auto Enrolment Pension Scheme

Under the Pensions Act 2008 all employees and workers who satisfy the definition of an eligible job holder must be enrolled by their employer who has passed the staging date into the workplace pension. Employees may opt out if they wish but employers must not do anything to encourage employees to opt out and they must be automatically re-enrolled every three years. An employer’s “staging date” depends on the size of the organisation.   

This right does apply to workers.

The Right to a Minimum Notice Period

Under Section 86 of the Employment Rights Act 1996 employees are entitled to a statutory minimum notice period. Employees who have been employed for at least one month, but less than two years are entitled to at least one week’s notice from their employer.  Employees with two years’ continuous employment or more are entitled to one week’s notice for each complete year, up to a maximum of twelve weeks’ notice. That means that if an employee is employed for thirteen years or more, his statutory minimum notice period will still be 12 weeks.

It is common for employers to offer one month’s contractual notice (or three months for senior professionals). This means that in the first four years employees will often enjoy superior contractual notice. After the first four full years it is often the other way round. It is not uncommon for both employers and employees to simply refer to the notice period in the contract and forget that the statutory notice entitlement may be more. 

This right does not apply to workers.

The Right Not to be Unfairly Dismissed

Under Section 94 and 98 of the Employment Rights Act 1996, employees have the right not to be unfairly dismissed, providing they have two years’ (less one week) of continuous service. In some circumstances where the dismissal will be deemed to be automatically unfair, the employee does not need to have the required continuous service.

This right does not apply to workers.

The Right to Statutory Redundancy Pay

Employees with two years’ continuous employment who are made redundant are entitled to a statutory redundancy payment.  The amount of the payment is calculated according to a formula based on the employee’s age, length of service and a week’s pay subject to a statutory limit. The statutory cap on redundancy pay is increased in line with the Retail Prices Index annually, usually in April once each year.  Since 6 April 2016 the weekly statutory cap has been £479 gross per week.  

The statutory formula used is as follows:

  • One and a half week’s pay for each full year of service in which the employee was 41 or over, subject to the statutory cap.
  • One week’s pay for each year of service between ages 22 and 40, subject to the statutory cap.
  • Half a week’s pay for each year of service under the age of 22, subject to the statutory cap.

A maximum of twenty years can be taken into account when calculating a statutory redundancy payment.

Where the employer has become or is in the process of becoming insolvent, the employee can claim their statutory redundancy pay from the National Insurance Fund.

This right does not apply to workers.

Family Friendly Rights

Under the Social Security and Benefits Act 1992 qualifying employees are entitled to Statutory Maternity Pay, Statutory Paternity Pay or Statutory Adoption Pay.

Parents and adopters are also entitled to various types of leave, including shared parental leave, ordinary maternity leave, additional maternity leave and paternity leave.

These rights do not apply to workers although some may qualify for Statutory Maternity Pay. 

The Right not to be Unlawfully Discriminated Against

Employees, employee shareholders and workers all enjoy the rights not to be unlawfully discriminated against or subjected to harassment or victimisation because of their age, disability, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, race, religion or belief, sex or sexual orientation.

These rights do apply to workers.
 
The Right not to be “Subjected to a Detriment”

In addition to the numerous statutory rights given to employees and some workers, the legislation also seeks to protect individuals from being ‘punished’ or ‘subjected to a detriment’ by the employer for asserting those statutory rights.  In most cases employees can claim compensation from a tribunal where they have been subjected to a detriment. The definition of a detriment is wide ranging and can cover all types of unfair treatment. It would ultimately be for a Tribunal to decide if the alleged treatment amounted to a detriment. If an employee is dismissed for asserting a statutory right it will amount to an automatically unfair dismissal.

This is a non-exhaustive list of some of those rights. The right not to suffer a detriment for:

  • Exercising rights as a part time worker, under Regulation 7, Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.  

This right does apply to workers.

  • Exercising rights as a fixed term employee under Regulation 6, Fixed Term Employees (Prevention of Les Favourable Treatment) Regulations 2002.  

This right does not apply to workers.

  • Exercising rights in respect of the Working Time Regulations 1998 under Section 45(a) of the Employment Rights Act 1996.  

This right does apply to workers.

  • Exercising rights in respect of a protected disclosure, (also known as whistle blowing) under Section 47(B) of the Employment Rights Act 1996.  

This right does apply to workers.

  • Exercising the right to be accompanied at a disciplinary or grievance hearing under Section 12 of the Employment Relations Act 1999.  

This right does apply to workers.

  • Exercising rights in respect of Health and Safety cases under Section 44 of the Employment Rights Act 1996.  

This right does not apply to workers.

  • Exercising rights in respect of Sunday working under Section 45 of the Employment Rights Act 1996.  

This right does not apply to workers.

  • Exercising rights in respect of taking time off for study or training, Section 47(a) of the Employment Rights Act 1996.

This right does not apply to workers.

  • Exercising rights in respect of Trade Union membership, Section 146 of the Trade Union (Labour Relations) Consolidation Act 1992.

This right does apply to workers.

  • Exercising rights in respect of family and domestic leave, Section 47C of the Employment Rights Act 1996.  

This right does not apply to workers.

  • Exercising rights in respect of the National Minimum Wage under Section 23 of the National Minimum Wage Act 1998.  

This right does apply to workers.

The Right to Time Off Work

Employees have numerous rights to take time off work for various reasons, some of which is paid and some unpaid.  Workers do not enjoy any of these rights. Click here for bereavement leave and compassionate leave.

The right for time off for:

  • Ante-natal care (unpaid) under Section 55 of the Employment Rights Act 1996.
  • Dependants (unpaid) under Section 57(a) of the Employment Rights Act 1996.
  • Trade Union duties (paid) under Sections 168 and 168(a) of the Trade Union Labour Relations Consolidation Act.
  • Trade Union activities (unpaid) under Section 170 of the Trade Union Labour Relations Consolidation Act.
  • Public duties (unpaid) under Section 50 of the Employment Rights Act 1996.
  • To look for work or arrange training in the event of redundancy (paid) under Section 52 of the Employment Rights Act 1996.
  • Pension scheme trustees (paid) under Section 58 of the Employment Rights Act 1996.
  • Employee representatives (paid) under Section 61 of the Employment Rights Act 1996.
  • Young people to undertake study or training (paid) under Section 63A-C of the Employment Rights Act 1996.
  • To study or undergo training (unpaid) under Section 63D of the Employment Rights Act 1996.

The Right to Request Flexible Working

Employees with 26 weeks' continuous service have the right to request (but not necessarily be granted) flexible working. The employer must give reasonable consideration to the request and may only reject the request for one or more of eight specified business reasons. Until 30 June 2014 this right to request was restricted to those with caring responsibilities for children or dependant adults. It is now open to all employees with the requisite 26 weeks' service.

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For further information please get in touch with our dedicated team.

You can always call us on 0845 894 1622 or email on info@cartwrightking.co.uk

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